Member's resolutions can only take place as stipulated by law for each specific company type.
In any company type, members can:
Written unanimous resolutions taken in universal meetings
The members can adopt unanimous resolutions in writing or convene a general meeting, without observing any prior formalities, as long as:
- All are in attendance;
- All demonstrate that they agree to the convening of the meeting to discuss a given matter.
Once all of these conditions have been met, the meeting functions according to all the legal and contractual rules relating to how the general meeting functions. However, only issues enjoying the consent of all partners may be discussed.
A member can only be represented in deliberations under these terms, if for this purpose, the representative is expressly authorized.
Members of a Private Limited Liability Company can:
Convening the general meeting
Any manager is responsible for convening the general meeting. The general meeting is convened by registered letter, sent at least 15 days in advance, unless legislation or the articles of association require other formalities or establish a longer term of notice. Notice of the general meeting can be provided via e-mail with viewing receipt to those members that have previously consented to accepting this means of notification.
General meetings must be convened whenever stipulated by law or whenever the management or supervisory board see fit to convene one.
A member can request, in writing, that a general meeting be convened, precisely indicating the matters to be included in the order of business and justifying the need for such a meeting.
The notice to convene a meeting must contain the following, at the very least:
- The business name, company type, registered office, Company Registry Office and respective registration number;
- The meeting´s time, date and place;
- The type of meeting - general or extraordinary;
- Any pre-requisites to which participation in the meeting and the exercise of voting rights may be subject;
- The order of business;
- When postal voting is not prohibited in the articles of association, a description of the manner in which postal ballots shall be processed, including the physical or electronic address, security conditions, deadline for receipt of postal ballots and the date on which they shall be counted.
How the general meeting functions
The General Meeting´s main operating rules:
- Except where otherwise established in the memorandum of association, each general meeting is chaired by the member attending the meeting possessing or representing the largest share of the capital. Where two partners account for equal shares of the capital, the older partner takes precedence;
- No member shall be prevented, not even by means of any provision in the memorandum of association, from participating in a meeting, even if said member is prevented from exercising the right to vote;
- The minutes of general meetings must be signed by all partners participating therein;
- Each cent of the par value of a quota counts as one vote;
- However, the memorandum of association may confer, as a special right, two votes for each cent of the par value of the quota or quotas held by members which, in total, do not account for more than 20% of the capital;
- Unless otherwise provided for in law or in the memorandum of association, resolutions are deemed to have been passed when they achieve a majority of the votes cast, not taking abstentions into account;
- Under the law, unless the memorandum of association requires a larger majority, the changes to the articles of association or the winding up of a company must be approved by members holding equity interests representing three quarters of the share capital.
Resolutions in writing
Members can pass a resolution by written vote if this is not forbidden by legislation or provision of the memorandum of association. This type of resolution is little used due to the formalities it entails.
The process involves the following phases:
- The members are consulted as to whether a meeting is required
The managers must send a registered letter to the members indicating the resolution to be taken and informing the addressee that no reply within fifteen days of the dispatch date is considered to be consent to waive the need for a meeting.
- Proposed resolution
On obtaining the consent of the members, the manager sends all members the proposed resolution together with the documents necessary to provide clarification. A term of no less than ten days is defined for voting.
- Written vote
The written vote must indicate the proposal and the approval or rejection of the same. Any modification to the proposal or limiting factor associated to the vote implies rejection of the proposal.
The manager shall draw up the minutes, which shall include verification of the circumstances permitting the resolution to go to a written vote, as well as define the proposal and the vote of each partner, declare the resolution adopted and submit a copy of the minutes to all members.
The resolution shall be considered adopted on the day on which the last response is received or at the end of the established term, in the event that a member fails to respond.
A written vote on a resolution is not permitted when any partner is prevented from voting.
Representation of members
- Voluntary representation is not permitted in resolutions voted on by written means.
- Instruments of voluntary representation which do not state the means of resolution included shall only be valid for resolutions to be adopted at regularly convened general meetings.
- Instruments of voluntary representation which do not state the duration of the powers conferred shall only be valid for the calendar year in course.
- At a specific general meeting, no matter whether it is meeting on the first date or fall-back date, a letter addressed to the respective chairman suffices for the purpose of representation.
A member must not vote either by itself or through a representative, nor in representation of a third party, whenever there is a conflict of interests with the company relative to the matter proposed for resolution.
Said situation of a conflict of interests is deemed to arise whenever the matter to be discussed and approved relates to:
- Release from an obligation or member-specific liability, either in that capacity as a member or as a manager or member of the supervisory body;
- Litigation relative to a claim of the company against the member or of the member against the company, in any of the capacities referred to in the previous sub-paragraph, either before or after having recourse to law courts;
- Loss by the member of part of its quota, under the circumstances provided for in Article 204, paragraph no. 2 of the Portuguese Companies Act;
- Dismissal of the member;
- Consent for the managers to carry out an activity competing with the company’s activity;
- Removal of the management or a member of the supervisory body from office, with just cause;
- Any relations, established or to be established, between the company and the member that are foreign to those provided for in the memorandum of association.